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The Constitution and Government of Canada, 1914
The British Empire consists of the United Kingdom of Great Britain and Ireland, India, the Protectorate of Egypt, the Dominion of Canada, the Commonwealth of Australia, the Union of South Africa, the Dominion of New Zealand, the Colony of Newfoundland and numerous colonies and protectorates in all parts of the world.
Territorially, Canada is all that part of the North American Continent north of the United States and east of the Territory of Alaska. In area it is the largest of the dominions of the Empire beyond the seas, and the greatest in white population.
There are several classes of territory and government under the Imperial sway, the first and highest class being composed of those former colonies possessing self-governing powers with legislatures freely elected and administrations responsible to the electorate through the parliaments or legislatures.
Responsible Government.—This system is styled “Responsible Government” in contradistinction to other forms wherein the executive powers are controlled to a greater or less extent by the Imperial Government and are not fully responsible to the local electorate. In the first class are Canada, Australia, South Africa, New Zealand and Newfoundland. The first three above named are federal in their character, with legislative and other jurisdictions strictly defined in their Acts of Union. In all these, the Governor-General, or Governor, as the case may be, is the direct representative of the Sovereign and responsible to the Imperial Government for the proper discharge of his important functions.
Imperial Veto.—In addition to the right of appointment of Governors-General, the Imperial Power, or the “Crown,” as it is called, reserves certain powers of veto upon the Acts of the Dominion, Commonwealth or other parliaments, which might be held to be at variance with, or prejudicially affect, the general or foreign policy of the Empire as a whole, or be deemed to be beyond the powers granted to the Dominion, Union or Colony in question. The veto power is, however, rarely exercised, partly because the colonial parliaments freely recognize Imperial rights, claims and policies, and carefully avoid trenching upon them, and partly because in doubtful cases precedents, judicial decisions and friendly discussions have long since practically settled almost all disputed points. In all essential respects, at any rate as far as domestic affairs are concerned, the government of each Dominion is independently exercised by a parliament and administration responsible to the electorate.
Crown Colonies.—Other colonies are known as Crown Colonies, Dependencies and Protectorates, and these have various degrees of self-government. The executive power is here carried on under the close supervision of the Colonial Secretary and the Imperial Government in London. In some, the Home Government concedes to local representative assemblies the power of legislation, but in others the Crown reserves the right of legislation by Orders-in-Council and of directing executive action by the Governor without interference from local authorities.
India.—The case of India, as a portion of the Imperial Dominion, is quite exceptional, its system of government having but little in common with that of most of the other British territories. Its history under the native kings and princes, the peculiar character and disposition of the diverse races occupying its territory, and its ancient connection with the East India Company and British Empire under circumstances of conquest and annexation, account for the methods of rule applicable to it, which are altogether different from those of either Crown Colonies or the self-governing Dominions.
Colonial Office.—In 1794, the Imperial Colonial Office became an active Department of State. Representative institutions had been granted to Nova Scotia and New Brunswick anterior to that date as also to the provinces of Upper and Lower Canada. Complete responsible government was finally established in these provinces by 1847, a conclusion which had been powerfully influenced through Lord Durham's famous report of 1839. The powerful influence of the Colonial Office in delaying the complete installation of responsible government in the colonies led to many bitter controversies. The story of the development of the Governors' Cabinet in the colonies into the Peoples' Cabinet, responsible to the peoples' representatives forms a number of the most interesting chapters in our political history. It was accomplished without revolution and with scarcely the shedding of a drop of blood. Lord Durham's report forms one of the landmarks of constitutional history in Canada. “The problem,” Lord Durham asserted in 1839,“was to bring the influence of a vigorous public opinion to bear on every detail of public affairs and to secure harmony instead of collision between the various powers of the State.” Bradshaw remarks, “In these simple words Durham laid the foundation of the new colonial policy of Great Britain.”
Canada before Confederation.—The provinces and territories of Canada came into the Empire at different times and under varying circumstances. The province of Nova Scotia, first colonized by the French in 1598, was taken by the English in 1629, restored to France in 1632, and again ceded to Great Britain by the Treaty of Utrecht in 1713. Cape Breton, now a part of Nova Scotia, was not finally taken over by the English until 1758, and formed a separate colony until 1820. Representative institutions were granted to Nova Scotia in 1758, and in 1867 that province entered the federal union. A portion of New Brunswick was ceded to Great Britain by the French in 1713; but the province did not wholly become British until after the fall of Quebec in 1759-1763. It was largely colonized from New England in 1762. At one time a part of Nova Scotia, it became a separate province in 1784, and joined the federal union in 1867. Prince Edward Island, at first settled by the French, was annexed to Nova Scotia in 1713, but was a separate colony in 1769 and became a province of the Dominion by virtue of the British North America Act in 1873. Ontario and Quebec, referred to as Old Canada, are the two largest of the original provinces which formed the Dominion in 1867. Quebec was founded by the French in 1608. It fell to the British in 1759, and in 1763 was formally ceded to Great Britain. From 1763 to 1774 it was governed under military rule or authority, but in later years a Council of Government was established by the British Parliament. In 1791 an Imperial Act was passed dividing Canada into two provinces, Upper Canada and Lower Canada, and a constitution was provided for each province. Each province was granted a legislature consisting of two Houses, a nominative council and a popular assembly. These two provinces were however again united in 1841. From February 10 of this year until the federation of the provinces in 1867 they continued as one province. At the union in 1867 they were again separated, Upper Canada becoming “Ontario,” and Lower Canada “Quebec.”
British Columbia.—British Columbia, on the shores of the Pacific, was granted a colonial Government in 1858. In 1859, Vancouver Island became a colony with a separate government. In 1866, British Columbia and Vancouver Island were united under one government and as such entered the Federal Union in 1871. At the time of joining the union, all these provinces were in the full exercise of the principles of responsible government.
Northwest Territories.—That vast region to the north of British Columbia and Old Canada, known as Rupert's Land and the Northwest Territory, was taken over by the new Dominion in 1869, on the payment of $1,500,000 for certain claims of the Hudson's Bay Company, to which were also reserved large areas of land in the ceded territory. Out of this territory the present provinces of Manitoba, Saskatchewan and Alberta have been carved, viz., Manitoba in 1870 and the other two in 1905. There remain the extensive districts of the Yukon and the Northwest Territory which are still under territorial administration as adjusted by certain Dominion legislation.
Fathers of Confederation.—The distinguished Canadian statesmen who participated in the conferences of 1864 at Charlottetown and Quebec, which led to the passage of the British North America Act in the Imperial Parliament, are now affectionately and admiringly remembered as the “Fathers of Confederation.” Among the most prominent of these are such well-known names as those of Sir John A. Macdonald, Sir Charles Tupper, the Hon. George Brown, Sir Leonard Tilley, Sir George E. Cartier, Sir Oliver Mowat, the Hon. D'Arcy McGee and Sir E. P. Tache Others who held high positions in the public life of Canada during the years immediately preceding and following the date of the Union,—men of great attainments and strong character, who had shared largely in the preparation of the public mind for the proposed union and had done much to shape its form,—do not at the present time fill so large a space in the public memory as they will in history when the full account of Confederation is written.
Federal Union.—Previous to 1861 many suggestions for the union of the North American provinces had been put forward, but the first legislative action looking to this end was taken by the House of Assembly of Nova Scotia in 1861 under the leadership of the Hon. Charles Tupper, then a member of that body and Provincial Secretary of the Province.
Early in 1864 delegates from the provinces of Nova Scotia, New Brunswick and Prince Edward Island assembled in Charlottetown, authorized by their respective governments to confer in reference to a union of these provinces. Nothing, however, on this line was at that time accomplished, except that as a result of certain conferences, another convention was called by the Governor-General to meet at Quebec on October 10, 1864, in which Upper and Lower Canada and the Maritime Provinces were all represented. Seventy-two resolutions, afterwards formulated as the British North America Act, 1867, were adopted by this convention, and these were subsequently presented to the respective legislatures for concurrence. The Canadian Parliament in March of the following year adopted the resolutions, but in the Maritime Provinces much opposition was shown to the scheme. In 1866, however, the province of New Brunswick, after a general election, also concurred in the resolutions. The Legislature of Nova Scotia adopted the measure without referring to the electorate. The Bill for the Union was presented for the first time in the Imperial Parliament in February, 1867, and passed the two Houses on March 29 in the same year. The Act, officially cited as “The British North America Act, 1867,” came into force by proclamation on July 1 in that year. This date has since in each succeeding year been celebrated throughout Canada as a statutory holiday styled “Dominion Day.” The Right Hon. Charles Stanley, Viscount Monck, who at the time of the union was Governor of Canada, became the first Governor-General of the new Dominion.
Canada and the Federal System.—under a federal system the constitution of a country includes not merely the framework of a federal arrangement, but the principle of the whole political constitution in its practical operations. It implies independent co-ordinate powers, each sovereign in its own sphere. The provincial governments are not subordinate to the federal, but in their own spheres are perfectly independent. In the case of Canada the practice of constitutional parliamentary government was thoroughly established as the fundamental law long before the date of the political union of the provinces, and so the same continued in both the federal and provincial spheres after the union was effected.
Representation of Provinces.—The Dominion of Canada, now a federal union of nine provinces, viz., Prince Edward Island, Nova Scotia, New Brunswick, Quebec, Ontario, Manitoba, Saskatchewan, Alberta and British Columbia, controls all the rest of the territory of Canada, governing it either through local commissions and councils or directly through the Governor-General in Council. Each of the above named provinces has its own Governor, Executive Council (or Cabinet) and Legislature, as established by the British North America Act, or by virtue of powers contained therein, or by subsequent Imperial Acts. These provinces are represented in the Federal Parliament as follows, viz., in 1914:
| Province | Senators | Members of the House of Commons |
|---|---|---|
| number | ||
| Prince Edward Island | 4 | 4 |
| Nova Scotia | 10 | 18 |
| New Brunswick | 10 | 13 |
| Quebec | 24 | 65 |
| Ontario | 24 | 86 |
| Manitoba | 4 | 10 |
| Saskatchewan | 4 | 10 |
| Alberta | 4 | 7 |
| British Columbia | 3 | 7 |
| Yukon Territory | - | 1 |
| Total | 87 | 221 |
The Yukon Territory, though not a province, is an electoral district and returns one member to the House of Commons. The total number of senators in 1914 was therefore 87 and the total number of members of the House of Commons 221.
Representation Act, 1914.—The result of the census of 1911 necessitated a redistribution of the representation in the House of Commons under the provisions of the British North America Act. In 1914, therefore, an Act was passed styled the “Representation Act, 1914,” which will come into force upon the dissolution of the present parliament. This provides that the House of Commons in the ensuing parliament shall consist of 234 members, of whom 3 shall be elected from Prince Edward Island, 16 from Nova Scotia, 11 from New Brunswick, (55 from Quebec, 82 from Ontario, 15 from Manitoba, 16 from Saskatchewan, 12 from Alberta, 13 from British Columbia and one from Yukon Territory. A schedule to the Act defines the various electoral districts throughout Canada.
British North America Act.—The Dominion of Canada, being a federal union of provinces, one of the most important studies in connection with its constitution is that of ascertaining as clearly as possible how the various powers of legislative and executive action are distributed between the provincial and federal authorities. The Act of the Imperial Parliament, which constitutionally brought the Dominion into being as a political entity and furnished it with the authority and power to create new provinces out of the vast territory committed to its charge, is known as the British North America Act 1867.
This important piece of legislation is frequently referred to as “the Constitution.” In a very limited sense, however, can it be properly termed a constitution? The constitutional rules and principles under which government and legislation are carried on are not at all set forth in this Act, nor in the nature of things could they be. The Act, while carefully defining the powers of the Dominion and of the provinces respectively, and distributing those powers definitely between the provincial and federal authorities, leaves their practical working out to the general principles of British constitutional law. As stated above the constitution of a country under the federal system includes not only the framework of the federal arrangement, but the principles of the whole political organization in its operation. In Canada the practice and usages of parliamentary responsible government were thoroughly established long before the Union of 1867. The Imperial Act merely confirmed these in a preamble which declared that the provinces to be united desired a constitution “similar in principle to that of the United Kingdom.”
This phrase imports into the Act the whole code of the written and unwritten law of the constitution of the United Kingdom as virtually in practice in all the provinces of Canada at the union. The Union Act consequently contains but a portion of the constitution of the country. Even so thoughtful a writer as Sydney Low, whose book, entitled “The Governance of England,” is of great value, is betrayed into defining the constitution of Canada as “a written constitution”—as a constitution “created by parliamentary enactment.” This writer goes on to insist that the statute which created the Federal Union of Canada is a “constitution like that of the United States.” His reference to it as a “written” constitution, and in that respect differing “fundamentally” from that of the Mother Country, shows the error into which he has been betrayed. The fact is that, except in such details as naturally arise from a federal system and the absolute necessity in such a system of settling certain business questions and of clearly dividing the legislative, executive and judicial jurisdictions between the Dominion and the provinces, the constitution of Canada is in all essential points the constitution of the United Kingdom. There are numerous constitutional rules and principles, fundamental in their character and constantly appealed to in parliamentary and judicial discussion, which are not alluded to in the British North America Act. The only new principles added to the constitution of the Canadian provinces as they existed before 1867 is the federal principle. It merely divides up those portions of the sovereign powers of the State left to Canada between the general and provincial authorities in accordance with the agreements made between the provinces previous to the Union.
The Act united the provinces politically, distributed constitutional powers already existing, defined the jurisdictions of authority as between the Union and the units, and adjusted certain financial relations among them. The preamble of the Act states that certain provinces have expressed a desire to be federally united, “with a constitution similar in principle to that of the United Kingdom.” They might have asked for a constitution similar in principle to that already existing in each of the provinces, parties to the agreement, which would have meant precisely the same thing. Each province had a constitutional government in working order at the time of the proclamation of the Act. The law uniting them into one Dominion merely transferred the constitutional principles already in existence to the new organization. The nature of the new legislative authority and of the new executive government thus provided was along old lines, and former powers and functions were distributed and arranged to meet new conditions. No new principle of authority or government or new function was established. It no more created a new constitution for Canada than it created Canada itself. Like Canada itself, the constitution was created long before the Union by no single agency, by no special statute, but through political forces acting upon the practical necessities of the case throughout the whole history of the country. The principles were settled by means of political and judicial decisions dealing with innumerable cases and covering long periods of time in the old as well as the new world.
In its application to Canada the constitution is operated through a federal system merely as a business arrangement and as a matter of convenience. The Act, as has been said, is merely “a skeleton,” the flesh, blood, nerves, muscles and spirit being supplied from other sources. A study of this constitution in its numerous phases, altogether outside the statute, is of the greatest value; but our attention at present is to be drawn more directly to a consideration of the terms of the Act itself.
Executive and Legislative Powers.—The Imperial Act, after providing for the union of the provinces originally entering into the confederation, among its earliest enactments arranged for the taking of a general census of the Dominion in the year 1871 and every tenth year thereafter.
It next provided for the Executive Government of the Union. This was to consist of a Governor-General and a Council to aid and advise in the administration of the Government. This Council is styled the “Privy Council” and is composed of such persons as may be from time to time summoned for that purpose by the Governor-General. All the powers of the administration are to be exercised by the Governor-General and by the advice of his Council, subject, of course, to the laws of the land.
All military and naval forces are under the command in chief of the Sovereign, who acts through his representative the Governor-General, who in turn is advised by the Government of Canada in carrying into effect the established laws relating to military and naval service.
Legislative Power.—The legislative power of Canada is declared to be vested in one parliament. This parliament (Sec. 17) consists of the King, the Senate and the House of Commons. The parliament must be called together at least once a year (Sec. 20), so that twelve months shall not intervene between two sessions of parliament.
Senate.—At the beginning of the Union the Senate consisted of 72 members. At present it consists of 87 members as follows: Maritime Provinces 24, Quebec 24, Ontario 24, and the Western Provinces 15. A senator must be, at the time of his appointment (Sec. 23), at least thirty years of age, a British subject, a resident of the province for which he is appointed and worth $4,000 over and above his debts and liabilities. His appointment is for life, subject to certain restrictions set forth in Sections 31 and 39. The Speaker of the Senate must be a senator. He is appointed by the government of the day, which may also remove him and appoint another in his place. Fifteen senators form a quorum.
House of Commons.—The House of Commons, at the time of confederation, consisted of 181 members, but at the general election after the conclusion of the twelfth parliament it will be composed of 234 members. The Speaker of the House of Commons is elected by the members of the House, twenty of whom constitute a quorum for the dispatch of business (Sees. 44 and 48).
Speaker and Deputy Speaker.—In pursuance of legislation and according to the rules of the House of Commons, a deputy speaker is selected at the commencement of each parliament. This official is required to possess a full and practical knowledge of the language which is not that of the Speaker. As a custom growing out of this rule the speakership of the House is, during one parliament, held by an English-speaking member and during the succeeding parliament by a French-speaking member. The Speaker is nominated by the government of the day, as is also the Deputy Speaker; but they are not supposed, during their terms of office, to take an active share in party strife.
Privileges of Members.—The British North America Act (Sec. 50) provides that every House of Commons shall continue for five years unless sooner dissolved by the Governor-General. The privileges, immunities and powers of the House of Commons and its members, and those of the Senate and its members, are such as may be defined by act of parliament, but they must never exceed those held and enjoyed by the Commons of England and its members at the time any such act is passed in Canada. Among the sole rights of the Canadian Commons is that of initiating the grants of public money and of directing and limiting the appropriations without the Senate having any power to change them. The members of parliament also have certain rights and privileges, such as exemption from arrest during sessions of parliament and for a certain number of days before and after the meeting of parliament. This does not apply to cases of treason, felony, or charges generally of a criminal nature. Freedom of speech in parliament (subject to its own rules) is also guaranteed.
Rule of Representation.—Representation of the people in the House of Commons is readjusted from time to time by the parliament, subject to rules laid down in Sections 51 and 52 of the Act. One of these rules is that the province of Quebec shall have the fixed number of 65 members. Each of the other provinces is to have such a number of members as will bear the same proportion to the number of its population as the number 65 bears to the population of Quebec, as ascertained at the regular decennial census. (Sub-section 3 provides for fractional parts of the population required for membership or otherwise.)
Dominion Finances.—Among the most important provisions of the British North America Act are those relating to the appropriation of public money and the raising of taxes for federal purposes. All bills on these subjects must originate in the House of Commons, yet it is not lawful for even the House of Commons (Section 54) to adopt or pass any vote, bill, resolution or address for the payment of any part of the public funds for any purpose that has not first been recommended to the House by message from the Governor-General during the session in which such vote or bill is proposed. This rule is of the most vital and far-reaching importance, forming in many respects the key to responsible government as worked out in practice under the British constitutional system. The Governor-General may, in the Sovereign's name (Sec. 55), either assent at once to a bill passed by the Houses of Parliament or he may reserve it for the consideration of the King. The King may (Sec. 56) disallow an act passed by the Parliament of Canada, but such disallowance must be signified to each House of Parliament in Canada by speech, message or proclamation, and such disallowance must be made within two years from the date of the receipt of the act by the Imperial Secretary of State.
Constitution of the Provinces.—The executive powers of the various provinces are dealt with by Sections 58 to 68. They may be generally summed up as follows:—Each province is to have a lieutenant-governor appointed by the Government of Canada, who shall not be removable from his office within five years from the date of his appointment, except for cause assigned. His salary is fixed from time to time by the Parliament of Canada. At present the Lieutenant-Governors of Quebec and Ontario receive $10,000 each and those of the other provinces $9,000 each, except Prince Edward Island's Governor, whose salary is $7,000. The executive powers and authority of the Lieutenant-Governor in Council are practically exercised under the general principles of responsible government as understood throughout the British Dominions, subject always to the laws of the province in question. In case of the absence, illness or other inability of the Lieutenant-Governor to act, the Governor-General in Council may appoint temporarily an administrator of the office under the same limitations as would apply to a lieutenant-governor.
Legislative Powers of Provinces.—The legislative powers of the four original provinces are (Sec. 146) extended to any other provinces or colonies which may be admitted into the union hereafter. Provision is made (Sec. 147) for the representation of Prince Edward Island and Newfoundland in the Senate in case of their entering the union, and provision is also made for the future admission of the Northwest Territories.
By an Imperial Act entitled the British North America Act, 1871, power is vested in the Parliament of Canada to establish new provinces and provide for the constitution and administration thereof and for their representation in parliament. Parliament is also empowered to alter the boundaries of any province with the consent of the legislature of the province, and also to legislate generally for the territories.
The provinces originally forming the union were Quebec, Ontario, Nova Scotia and New Brunswick. Ontario and Quebec were one province at the time of the passing of the Act, and were created anew (Sec. 6) out of the old province of Canada. Ontario was provided with a legislature consisting of a lieutenant-governor and one House styled the Legislative Assembly, composed of 82 members, elected by the 82 electoral districts set forth in the first schedule of the Act. The present number of members is 111. The Legislature of Quebec consists of a lieutenant-governor and two Houses, a Legislative Council and a Legislative Assembly. The qualifications for membership in the Council and for the speakership, and the regulations concerning a quorum and voting, with other particulars of organization, are also contained in the Act (Sees. 71-80).
At Confederation, the number of members of the Legislative Assembly of Quebec was settled at 65. The number at present is 81. The election laws in force in Quebec and Ontario at the time of the union continued in force until the respective legislatures otherwise provided (Sec. 84). The legislative assemblies were to continue for four years after every general election unless sooner dissolved (Sec. 85). The same rules as to the requirement of a yearly session, as settled for the Dominion Parliament, were established (Sec. 86), as were also the rules as to the election of the Speaker, as to quorum and voting. The provinces of Nova Scotia and New Brunswick continued the constitution of their legislatures as existing at the time of the union.
The important constitutional provisions above referred to as to the preliminaries necessary to the passing of the money votes, the disallowance of acts and the assent of bills reserved were made applicable to the provincial legislatures (Sec. 90) in the same manner as to the Dominion Parliament. In these cases the lieutenant-governor stands in the same relation to the provinces as does the King to the Dominion.
Distribution of Legislative Powers.—The title of the sixth division of the British North America Act is “Distribution of Legislative Powers.” This distribution is essential to a federal system and has necessarily given rise to many of the most difficult questions that have arisen as to the powers of the Dominion Parliament and local legislatures respectively. These questions have been settled by judicial decisions of the greatest practical importance. The well-known sections (Sees. 91 and 92) cover a large part of this very extensive battle ground.
Powers of Parliament.—The powers of the Federal Parliament include all subjects not assigned exclusively to the provincial legislatures. In this respect the Canadian federal system differs from that of the United States and also from that of the Commonwealth of Australia, wherein the powers of the respective states, generally speaking, cover all matters not especially or exclusively assigned to the union. The exclusive legislative authority of the Parliament of Canada extends to all matters coming within the following class of subjects (Sec. 91): public debt and property; trade and commerce; the raising of money by taxation for federal purposes; the borrowing of money on the public credit; the postal service and census and statistics; military and naval service and defence; the fixing and paying salaries of the officers of the government; navigation; beacons; lighthouses; quarantine and the establishment and maintenance of marine hospitals; sea coast and inland fisheries and ferries between provinces or between a province and any other country; currency; coinage; banks and banking; issue of paper money; savings banks; weights and measures; bills of exchange, promissory notes, interest; legal tender; bankruptcy and insolvency; patents and copyrights; Indians and Indian lands; naturalization and aliens; marriage and divorce; the criminal law, including procedure in criminal matters, but not the constitution of courts of criminal jurisdiction; the establishment, maintenance and management of penitentiaries and generally such classes of subjects as are by the Act expressly excepted in the enumeration of the classes of subjects assigned exclusively to the provincial legislatures. It declares that any matters coming within any of the classes above enumerated shall not be deemed to be of a local or private nature as mentioned in the classes of subjects assigned exclusively to the legislatures of the provinces.
Exclusive Powers of the Legislatures.—Section 92 furnishes a list of the subjects of legislation assigned exclusively to the provincial legislatures, viz., the amendment of the constitution of the province, except as regards the office of the lieutenant-governor; direct taxation within the province for revenue purposes; the borrowing of money on the credit of the province; the establishment of provincial offices and the payment of the officials; the management and sale of public lands of the province and the timber and wood thereon; the establishment and control of provincial reformatories, hospitals, asylums and charitable institutions in and for the province other than marine hospitals; municipal institutions within the province; shop, saloon, tavern, auctioneer and other licenses for local or provincial purposes; local works and undertakings other than: (a) Lines of ships, railways, canals, telegraphs and other works connecting the province with other provinces or extending beyond the province; (b) Lines of steamships between the province and any British or foreign country; (c) Such works as, although wholly within the province, may be declared by the Parliament of Canada to be for the general advantage of Canada or for the advantage of two or more of the provinces. This clause has been extensively made use of in the matter of railway lines. Other exclusive powers assigned to the provincial legislature are: The incorporation of companies with provincial objects; the solemnization of marriage in the province; property and civil rights in the province; the administration of justice in the province, including the constitution, maintenance and organization of provincial courts both for civil and criminal jurisdiction, and including procedure in civil matters in those courts; the punishment by fine or imprisonment for enforcing any law of the province and generally all matters of a merely local or private nature in the province.
Education.—Education, treated of in Section 93 of the Act, has been the subject of many long and able controversies both in parliament and in the courts. The first section of this celebrated enactment is as follows: “In and for each province the legislature may exclusively make laws in relation to education, subject and according to the following provisions:—
(1) Nothing in any such law shall prejudicially affect any right or privilege with respect to denominational schools which any class of persons have by law in the province at the union.
(2) All the powers, privileges and duties at the union by law conferred and imposed in Upper Canada on the separate schools and school trustees of the Queen's Roman Catholic subjects shall be, and the same are hereby extended to the dissentient schools of the Queen's Protestant and Roman Catholic subjects in Quebec.
(3) Where in any province a system of separate or dissentient schools exist by law at the union or is thereafter established by the legislature of the province, an Appeal shall lie to the Governor-General in Council from any act or decision of any provincial authority affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's subjects in relation to education.
(4) In case any such provincial law as from time to time seems to the Governor-General in Council requisite for the due execution of the provisions of this Section is not made, or in case any decision of the Governor-General in Council on any appeal under this Section is not duly executed by the proper provincial authority in that behalf, then and in every such case, and as far only as the circumstances of each case require, the Parliament of Canada may make remedial laws for the due execution of the provisions of this Section and of any decision of the Governor- General in Council under this Section.”
The purpose of these sections was to preserve to a religious minority in any province the same privileges and rights in regard to education which it had at the date of Confederation, but the provincial legislatures were not debarred from legislating on the subject of separate schools provided they did not thereby prejudicially affect privileges, previous to Confederation, enjoyed by such schools in the province.
As to the legal and other controversies affecting these questions the student may consult Hansard between 1890 and 1897, “Wheeler’s Privy Council Cases,” pp. 370 to 388, Supreme Court Reports, Vol. 19, and other authorities of a like nature.
Agriculture and immigration may be legislated upon by both the parliament and the legislatures, but any provincial law on these subjects shall remain in effect in the province only so far as it is not repugnant to any Act of the Parliament of Canada.
Judicature.—Sections 96-100 deal with the appointment, salaries and pensions of the judiciary. The judges (except of courts of probate) are to be appointed by the Dominion Government from the respective Bars of the provinces and to hold office during good behaviour, but may be removed only on an Address by the Senate and the House of Commons. Parliament also fixes their salaries.
The Federal Parliament, being empowered by Sec. 101 to establish a general Court of Appeal and other courts as may be necessary, passed an Act in 1875 establishing the Supreme Court of Canada and conferring upon the judges of the court the powers of an Exchequer Court which was at the same time set up. In 1877, however, these courts were separated and the Exchequer Court of Canada, with one judge, a registrar and other proper officers, was established. In 1912 a second judge was added to this court under the title of Assistant Judge.
The Supreme Court of Canada has appellate jurisdiction from all the courts of the provinces. The Governor-General in Council may refer questions to this court. The judgment of the Supreme Court is final in criminal matters. This court has also jurisdiction in cases of controversies between the provinces and the Dominion, and in certain cases between the provinces themselves. There is an appeal from the Supreme Court in civil cases, under certain limitations, to the Privy Council in England. The Privy Council also entertains appeals direct from the provincial Appeal Courts without the intervention of the Supreme Court of Canada. The decisions of the Supreme Court of Canada and of the Judicial Committee of the Privy Council of England form a mass of most valuable and important declarations of law as to the constitution of Canada and as to the varied powers of the Federal and provincial legislatures.
Provincial Finances.—The revenues, debts, assets and taxation of the Dominion are regulated and administered under the provisions of Part VIII of the British North America Act, 1867, and the Amending Act of 1907.
The provincial debts and sources of revenue, except those especially reserved to the provinces, were assumed by the Dominion, as were also the public works, cash assets and other property of the provinces, except lands, mines, minerals and royalties belonging to the old provinces of Canada, Nova Scotia, and New Brunswick at the union.
The Dominion pays yearly to the several provinces sums of money for the support of their governments and legislatures, details of which are set out in the above mentioned Acts and in the various Acts under which new provinces were taken into the confederation. The amounts of these various payments and subsidies are annually set forth in the Public Accounts and submitted to Parliament at each session by the Minister of Finance.
The following amounts are payable in 1915:—
| Province | Amount |
|---|---|
| $ | |
| Prince Edward Island | 381,931.88 |
| Nova Scotia | 636,666.86 |
| New Brunswick | 637,976.16 |
| Quebec | 1,969,630.28 |
| Ontario | 2,396,378.88 |
| Manitoba | 1,401,391.36 |
| Saskatchewan | 1,710,675.00 |
| Alberta | 1,401,575.00 |
| British Columbia | 723,135.06 |
| Total | 11,259,360.48 |
Miscellaneous Provisions.—The Imperial Act of 1867, among its miscellaneous provisions, established the following rules: The oath of allegiance is to be taken by every member of the House of Commons and the Senate, and by every member of a legislative council or legislative assembly of a province. Members of the Senate and of the Legislative Council of Quebec are also required to take and subscribe the oath of qualification for office as set forth in a schedule to the Act.
The Parliament and Government of Canada have all the powers necessary (Sec. 132) as a part of the British Empire for performing the obligations of Canada or any province towards foreign countries arising under treaties between the Empire and foreign countries. A department of State called the Department of External Affairs has recently been established (1912). The Prime Minister for the time being is the Minister in charge of this department.
On the subject of language, Section 133 declares that either the English or the French language may be used by any person in the debates of the Houses of Parliament and of the Houses of the Legislature of Quebec and that both these languages shall be used in the records and journals of those Houses. It also provides that either of those languages may be used by any person, or in any pleading or process in any court of Canada established under the Act, and in all the courts of Quebec. All Acts of the Parliament of Canada and of the Legislature of Quebec are to be printed in both French and English.
Intercolonial Railway.—The construction of the Intercolonial Railway was made by the British North America Act one of the duties of the Parliament of Canada. The railway has been constructed and extended at a total cost up to 1915 of $101,467,501.85.
Admission of Other Colonies.—Power was given by the Act to the Sovereign to admit Newfoundland and other colonies to the union upon address from the Parliament of Canada and from the colonies interested. Under this power British Columbia was admitted in 1871 and Prince Edward Island in 1873. Rupert's Land was admitted in 1870 by Imperial Order-in-Council based upon the above provisions as confirmed by a special Imperial Act in 1868. Subsequently Manitoba became a province of the confederation (1870) by virtue of an Act of Parliament of Canada passed in pursuance of the powers above referred to.
Federal Administration.—Among the earliest Acts of Parliament were those establishing the various departments of government. The history of these is of considerable interest. Some additions and changes in the number, designations and powers of these departments have from time to time been made as circumstances demanded. At present there are fifteen ministers of the Crown presiding over departments. Each of these ministers must be a member of one or other of the Houses of Parliament. These departments are as follows: Privy Council (presided over by the Prime Minister, who is also head of the Department of External Affairs recently established); Trade and Commerce; Public Works; Railways and Canals; Finance; Insurance; Marine; Naval Service, which includes Fisheries; Justice; Militia and Defence; Interior, the head of which department is also Superintendent General of Indian Affairs; Labour, Customs; Agriculture; Mines; Secretary of State, under which the Department of Public Printing and Stationery is included; Postmaster-General; Inland Revenue. All the Ministers of these departments are Privy Councillors and members of the Cabinet. The Governor-General also may call to the Cabinet other Privy Councillors who hold no portfolio. At the present time (1915) there are three of these cabinet ministers. The Solicitor-General, although a member of Parliament, is not a member of the Cabinet. The “Privy Council” is a permanent body which in practice never meets or transacts any business, but the “Cabinet” formed from among the -Privy Councillors is, though a fluctuating body as regards its personnel, the real executive power of the State. It is the actual government of the day, and continues in authority as long as it is supported by a majority of the House of Commons.
The rise and fall of provincial administrations, the many important statutes passed by the provincial legislatures dealing with the amendments of their constitutions and with the numerous subjects under provincial jurisdiction and the methods adopted in different provinces to meet the varied circumstances and conditions of the people, are topics upon which much could profitably be written. Of these the most important would be those dealing with municipal and local taxation, education, the management of public property, roads and bridges and financial administration. All of these matters come very close to the people, affecting as they do so directly their daily life and activities. Consequently, questions regarding procedure and legislation in these matters, though generally esteemed as of mere local importance, are widely discussed and powerfully affect public opinion. There are a few subjects, such as agriculture and immigration, in which the parliament and the legislatures have concurrent jurisdiction, but the provincial laws in these matters must give way to the federal when they happen to conflict.
In a federal system like that of Canada, which is in itself a portion of a world-wide Empire, each government must act and each legislature must undertake to pass laws only upon subjects assigned to them respectively under the union pact. To that extent the provinces must carefully scrutinize Dominion legislation in order to see that their domain is not invaded. The Dominion must take care that the provinces do not enter the federal sphere, and the Mother Country, at the seat of the Empire, is also bound in justice to Canada and to the interests of the Empire as a whole, to see that Canada does not by executive or legislative act cross the lines of Imperial responsibility. Individual members of the Canadian community and corporate bodies transacting every kind of business have a similar stake in the observance of this principle. They must be cautious in their action to observe the boundaries of jurisdiction; and these are not always easy to ascertain. The limits of power between the federal and provincial authorities are not always so sharply defined as to prevent wide differences of opinion as to their true bearings and relations. The language of statute makers is not invariably a perfect medium of expression; consequently the task of settling questions arising out of apparent conflicts of laws is one of delicacy as well as of vast importance. Costly litigation in the courts of Canada and Great Britain frequently affords illustration of the heavy penalties paid for misunderstanding the true sanctions of statutes, and their relations to each other as deriving their authority from different powers in the federal system. All laws are to be interpreted in cases of dispute by the courts, the final court of appeal being the Judicial Committee of the Privy Council in England. Our courts, governments and legislatures are bound to consider the final decisions of this court as precedents for their future action. Here the duties of the judiciary are of the gravest importance, the exercise of the powers assigned to the judges under the constitution demanding high intelligence, great learning and thorough impartiality. The courts, as one able writer has declared, are the custodians of the constitution. They may decide as to whether a statute is valid or void, and their considered decisions thus become a part of the constitution. As a result of this procedure certain litigated cases stand out with great prominence as landmarks in the judicial and constitutional history of the country. They have settled not merely the precise questions in dispute at the time, but have laid down general principles of interpretation upon which future executive and legislative action must be based. For ampler information the student may be referred to “Cartwright’s Cases under the British North America Act,” the Reports of the Supreme Court of Canada and other similar works.
The above outline of the form and system of government in Canada has aimed merely to sketch in a general way the framework of our constitution. The intelligence, moral character and spirit of the people who live under it, who must impel and guide its operations and who are responsible for its failure or success as an instrument of national prosperity, are in reality of supreme importance. They, and not the system, must count principally in the working out of the great plan. But their share in the work is a subject for the consideration rather of the philosopher, historian and statesman than of the jurist. The constitution itself, in its entirety, has not been of sudden growth, but has developed slowly and has been tested by time and experience under many diverse circumstances. It has proved itself not only strong but adaptable, capable of sustaining patriotic feeling at its highest pitch, and of inspiring public confidence in its value as a solid basis of security for the healthful development of the state in all its varied interests. Under it, our opportunities for social culture and spiritual progress, based upon the virtues of industry, economy, sobriety and patriotism, have full scope for their freest exercise. It forms at once a safeguard of liberty and an enduring monument to the statesmen whose labours and genius were devoted to the welfare of their country.
